Hermann v Martin - [2020] NZHC 1082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000896

[2020] NZHC 1082

UNDER the Weathertight Homes Resolution Services Act 2006

IN THE MATTER

of an appeal from a decision of the Weathertight Homes Tribunal

BETWEEN

DAVID THOMAS HERMANN

First Appellant

HERMANN ENTERPRISES LIMITED
Second Appellant

AND

JULIE MARTIN, BELINDA MARTIN and NOEL CAVE

First Respondents

GRAEME JOHN EVANS
Second Respondent

Respondents continued over

Hearing: On the papers

Judgment:

21 May 2020

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 20 May 2020 at 3.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Grimshaw & Co, Auckland Simpson Grierson, Wellington

HERMANN v MARTIN [2020] NZHC 1082 [21 May 2020]

BRUCE POVELL
Third Respondent

RICHARD PALMER
Fourth Respondent

MARK WILLIAM TERRILL
Fifth Respondent

MWT MASONRY LIMITED
Sixth Respondent

FLETCHER CONCRETE AND INFRASTRUCTURE LIMITED
Seventh Respondent

NAGEL CONSULTANTS LIMITED
Eighth Respondent

[1] I refer to my substantive judgment dated 3 April 2020.1 I allowed the appeal by Mr Hermann and Hermann Enterprises Limited (jointly Hermanns) and directed that both Fletcher Concrete and Infrastructure Ltd (Firth) and Nagel Consultants Ltd (Nagel) be joined as defendants to the claim. I held that Hermanns were entitled to their reasonable costs and disbursements and directed that memoranda be filed.

[2]I have now received those memoranda.

[3] Hermanns seek costs on a 2B basis in the sum of $18,202.50, and disbursements of $1,364 – a total of $19,566.50. They annexed to their memorandum a schedule detailing the various amounts claimed.

[4] Firth responded. It asserted that the costs sought by Hermanns were excessive. It said that the appeal relied on the same arguments as were relied on at first instance, that a blanket band B allocation was inappropriate and that Hermanns were seeking to recover from Firth costs incurred in pursuing the appeal in respect of Nagel. It submitted that an award of $5,986 was appropriate, calculating some items on a band A basis and other items on a band B basis.

[5] Given the amount claimed by Hermanns, I issued a minute requiring Hermanns’ solicitor to file the invoice he sent to his clients. I received two invoices –

(a)an invoice dated 30 September 2019 in the sum of $8,925.26 (GST inclusive), comprising fees of $6,500 (GST exclusive) and disbursements of $1,425.88 (GST exclusive). In an accompanying memorandum, Hermanns’ solicitor advised that a portion of this invoice related to the Weathertight Homes Tribunal proceeding. He did not, however, say how much was attributable to the Tribunal hearing and the invoice did not detail what work was undertaken or the period covered by the invoice;

(b)an invoice dated 30 March 2020 for $7,418.30 (GST inclusive), comprising professional fees of $5,000 (GST exclusive) and

1 Hermann v Martin [2020] NZHC 688.

disbursements of $1,649.38 (GST exclusive). Again, the invoice was a global invoice, with no breakdown to detail the work undertaken.

Hermanns’ solicitor advised that there is a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hermann v Martin

Details

AGLC: Hermann v Martin [2020] NZHC 1082
Case: [2020] NZHC 1082
Decision Date: 21 May 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Hermann and Hermann Enterprises Limited (the "Appellants") appealed a decision of the Weathertight Homes Tribunal against Julie Martin, Belinda Martin, and Noel Cave, Graeme John Evans, Bruce Povell, Richard Palmer, Mark William Terrill, MWT Masonry Limited, Fletcher Concrete and Infrastructure Limited, and Nagel Consultants Limited (the "Respondents"). The Appellants sought costs on a band B basis for their successful appeal against the Tribunal's decision. The Appellants claimed a total of $19,566.50 in costs and disbursements. Fletcher Concrete and Infrastructure Limited ("Firth") responded, asserting that the costs sought by the Appellants were excessive and that they were seeking to recover costs incurred in pursuing the appeal against Nagel. Firth submitted that an award of $5,986 was appropriate.

The Court examined the invoices provided by the Appellants' solicitor and determined that the amount claimed by the Appellants was substantially in excess of the costs incurred. The Court noted that the invoices were global invoices, with no breakdown to detail the work undertaken or the period covered by the invoice. The Court found that the Appellants were only entitled to recover costs incurred by them, which were detailed in the invoices and the invoice still to be sent out. The Court then proceeded to consider what the award would have been and compared it to the costs incurred insofar as it could glean that from the materials provided.

The Court determined that the appeal was appropriately categorised as category 2 for costs purposes and fell into band B. The Court found that the Appellants were entitled to claim costs incurred on a 2B basis in preparing for the appeal and in preparing written submissions. The Court also allowed three quarters of the costs calculated on a 2B basis for the half-day appearance and allowed 50 per cent of the costs, on a 2B basis, for sealing the judgment and for filing the memorandum seeking costs.

After considering the costs incurred, the Court found that the total costs award was $8,425.00, and there was no dispute regarding disbursements. The Court allowed the sum claimed of $1,364 for disbursements. The Court made an award for costs and disbursements in favour of the Appellants, and against Firth, in the sum of $9,789.00.

Orders